On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-01-00030.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 8, 2012

Before Judges Yannotti and Espinosa.

Defendant Leonel Quinteroguerro was tried before a jury and found guilty of first-degree robbery, N.J.S.A. 2C:15-1(a); second-degree unlawful possession of an imitation firearm, N.J.S.A. 2C:39-4(e); third-degree making terroristic threats, N.J.S.A. 2C:12-3(b); and third-degree hindering his own apprehension, prosecution, conviction or punishment, N.J.S.A. 2C:29-3(b). Defendant appeals from the judgment of conviction dated March 17, 2011, and challenges his conviction and sentence.

I.

We briefly summarize the relevant facts, based on the testimony presented at trial. At approximately 10:00 p.m. on December 19, 2009, Marco Rivas (Rivas) left a restaurant in Westfield, New Jersey and headed to his girlfriend's home in North Plainfield. Rivas took a train from Westfield and, after he got off the train, Rivas decided to walk from the train station to his girlfriend's home.

As he was walking down Somerset Street, Rivas felt someone touch him on his back. He turned around and saw two men. One of the men told Rivas that this "was an armed robbery." One of the men, who Rivas later identified as defendant, was holding what appeared to be a black handgun. Defendant asked Rivas whether he could see that he was holding a firearm. He said, "Do you see that it's real? Can you see the bullets?" Defendant cocked the gun, which led Rivas to believe that defendant was loading the weapon.

Defendant then directed Rivas to walk. Initially, Rivas refused but defendant struck him and pushed him towards Manning Avenue. When the three men reached Manning Avenue, defendant ordered Rivas to hand over everything he had. Rivas told defendant he did not have anything, and defendant demanded his wallet. Rivas pulled out his wallet and handed it to defendant.

Before his encounter with defendant and the other man, Rivas had been speaking to his girlfriend on his cell phone. She was still on the line, and he whispered to her to call the police. When she hung up, Rivas's phone lit up, which prompted one of the men to demand that he hand it over. Defendant also took some food that Rivas had been carrying.

Defendant told Rivas to raise his hands over his head and repeatedly threatened to kill him. Rivas pleaded for his life, stating that he was disabled and had children. According to Rivas, defendant said that he did not care. Defendant then saw two individuals walking to a nearby building and he hid his gun.

Defendant waited for them to enter the building and then ordered Rivas to continue walking towards a dumpster which was nearby. Rivas walked towards the dumpster and then noticed that the two perpetrators were gone. Rivas went to his girlfriend's house. About five minutes later, Officer Albert Domizi (Domizi) arrived. Shortly thereafter, Sergeant Christopher Bond (Bond) arrived.

Rivas was upset. He was stuttering and shaking, and he appeared to be on the verge of crying. Rivas gave Domizi a description of his two assailants. He said that both were Hispanic. He said one was wearing a black jacket while the other was wearing a blue jacket. Rivas said that one of the men was tall and the other short. Domizi passed the information to Bond, who radioed the description to police headquarters and other police units.

After speaking to Rivas for about fifteen minutes, the officers left and they separately began to search the area for suspects. Bond soon came upon two individuals who matched the description that Rivas had provided. The two individuals were later identified as defendant and Jose Monterola (Monterola). They had been walking together, between parked trucks, behind a liquor store on Harmony Street.

Bond exited his police vehicle, approached the men and told them to stop. They complied. Bond asked them what they were doing, and one of the men said he was resting. Bond detained them and waited for backup. Domizi arrived and Officer Christopher Pelissier (Pelissier) joined them shortly thereafter. They took control of the suspects.

Domizi conducted a pat down search of Monterola, and he found that Monterola was in possession of two wallets. One wallet belonged to Monterola and it contained $63. The other wallet contained Rivas's Honduran national identity card, as well as his credit and debit cards. Domizi escorted Monterola to a police cruiser. As Monterola was walking to the vehicle, a black handgun fell out of the backpack he was carrying. A later examination revealed that it was an inoperable B.B. gun.

Domizi returned to the home of Rivas's girlfriend. According to Domizi, Rivas was still in shock. Domizi told Rivas that the police had apprehended two individuals who matched the description Rivas had provided earlier. Domizi said that Rivas would have to look at the persons being held and verify that they were the persons who committed the robbery. He drove Rivas to the spot where the suspects were being held.

On the way there, Domizi told Rivas that the persons being detained may or may not be the persons who robbed him. Domizi and Rivas pulled into the parking lot behind the liquor store. Monterola and defendant were standing about thirty to forty feet apart. Domizi again said that the suspects being held may or may not be the persons who robbed him. Immediately upon seeing defendant and Monterola, Rivas declared that they were the persons who robbed him earlier that night.

Defendant and Monterola were transported to the North Plainfield police station. There, Detective Alan McKay (McKay) took Rivas's statement, with the assistance of Domizi, who acted as a Spanish language interpreter. Meanwhile, Pelissier conducted a pat down search of defendant and found that defendant was in possession of Rivas's cell phone. Defendant told the officers that his name was Jorge Fernandez.

Defendant was informed of his Miranda*fn1 rights. Defendant acknowledged that he understood his rights and agreed to waive them and speak to the detectives. Defendant said that he was walking alone on Somerset Street when a bald man, who was wearing a blue jacket, approached him. The man, who was later identified as Monterola, tried to sell defendant a cell phone. Monterola then allegedly pulled out a handgun, pointed it at defendant and told him to come into a truck. When defendant refused to buy the phone, Monterola told him to leave.

McKay told defendant that he did not believe his story. Defendant maintained his innocence. McKay told defendant the victim had identified him as a participant in the robbery but defendant said the victim was mistaken. After a further discussion with McKay, defendant changed his story and admitted that he committed the robbery. Defendant said that he and his friend decided to rob "someone" and they decided to follow a man walking down the street.

Defendant said that his friend handed him a gun, which he had found in a brook near a store on Somerset Street. According to defendant, the victim told him to take his wallet. Defendant denied threatening to kill the victim and claimed that he merely pointed the gun at the victim. He stated that he wanted the victim to believe the gun was real.

Defendant testified at trial that, at the time the robbery was committed, he was walking around North Plainfield by himself. He said that a man in a truck offered to sell him a cell phone but he refused because he did not have enough money. Defendant claimed that he walked away and then was detained by the police.

When asked about the statements he gave to the police, defendant said that he did not understand his Miranda rights. He stated that he lied when he told the detective that he committed the robbery. Defendant said he was told he could leave if he admitted committing the robbery but that he was going "to stay arrested" if he refused to do so.

As stated previously, defendant was convicted of armed robbery, unlawful possession of an imitation firearm, making terroristic threats, and hindering his own apprehension, prosecution, conviction or punishment. The court merged the weapons conviction with the robbery conviction and sentenced defendant to twelve years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He also was sentenced to a concurrent term of four years for making terroristic threats, and a concurrent term of three years for the hindering conviction. This appeal followed.

Defendant raises the following arguments for our consideration:

POINT I

BECAUSE THE TRIAL COURT FAILED TO PROVIDE ANY INSTRUCTION TO THE JURY ON HOW TO PROPERLY ASSESS THE IN-COURT AND OUT-OF-COURT IDENTIFICATION OF [DEFENDANT] MADE BY RIVAS, [DEFENDANT] WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. 1, PARS. 1, 9, 10). (Not Raised Below).

POINT II

BECAUSE THE STATE FAILED TO SATISFY THE REQUIREMENT OF STATE V. DELGADO, THE RESULTS OF THE OUT-OF-COURT SHOWUP IDENTIFICATION

SHOULD NOT HAVE BEEN ADMITTED. (Not Raised Below).

POINT III

BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT BEFORE CONSIDERING [DEFENDANT'S] STATEMENT TO POLICE, IT MUST FIRST FIND THE STATEMENT TO BE CREDIBLE, [DEFENDANT] WAS DENIED HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART I, PARS. 1, 9, 10). (Not Raised Below). POINT IV

THE AGGREGATE SENTENCE IMPOSED, A TWELVE-YEAR STATE PRISON TERM SUBJECT TO NERA, WAS MANIFESTLY EXCESSIVE AS IT WAS BASED ON THE TRIAL COURT'S DOUBLE COUNTING AND INAPPROPRIATE APPLICATION OF AGGRAVATING FACTORS.

II.

Defendant argues that he was denied due process and a fair trial because the trial court did not provide the jury any instruction on how it was to assess Rivas's in-court and out-of-court identifications. This argument was not raised in the trial court. Therefore, we consider whether the absence of this instruction was erroneous and, if so, whether the error constituted plain error, which is an error "clearly capable of producing an unjust result." R. 2:10-2.

The trial court is required to instruct the jury on identification when defendant's identification is a "key issue" in the case. State v. Cotto, 182 N.J. 316, 325 (2005) (citing State v. Green, 86 N.J. 281, 291 (1981); State v. Davis, 363 N.J. Super. 556, 561 (App. Div. 2003)). An identification will rise to the level of a key issue when "'[i]t [is] the major . . . thrust of the defense." Id. at 325 (quoting Green, supra, 86 N.J. at 291). The court's failure to instruct the jury on identification may constitute plain error but whether it rises to that level "depends on the strength and quality of the State's corroborative evidence rather than on whether defendant's misidentification argument is convincing." Id. at 326 (citing Davis, supra, 363 N.J. Super. at 561.

Defendant contends that there were discrepancies in the testimony regarding the description that Rivas had provided of the perpetrators of the robbery. He further contends that the out-of-court showup identification was unreliable. He also says that there was contradictory testimony as to whether defendant and Monterola were viewed by Rivas at the same time or separately and whether defendant was seated in the police car when Rivas viewed him. Defendant notes that there were no eyewitnesses to the robbery, other than Rivas, and defendant denied that he was involved in the robbery.

We are convinced, however, that the court's failure to instruct the jury on identification was not plain error. Here, the court instructed the jury that defendant was presumed innocent and the State had the burden of proving that he committed the robbery beyond a reasonable doubt. The court also instructed the jury that it must assess the credibility of the witnesses. Thus, the jury was clearly instructed that it must consider Rivas's identification testimony was credible.

Moreover, the evidence presented by the State rendered the lack of an identification charge harmless error. While Rivas said that he did not see defendant's face, he had the ability to observe defendant and Monterola during the robbery and provided the police with a description of his assailants.

That description was sufficiently detailed to allow Bond to identify defendant and Monterola when he saw them a short time after the robbery and a short distance away from the place where it was committed. In addition, Monterola was found with Rivas's wallet and the weapon used to commit the robbery. Defendant was found in possession of Rivas's cell phone. Furthermore, defendant gave a statement to the North Plainfield police in which he admitted that he committed the robbery.

Thus, viewing the jury charge in its entirety and considering the evidence that corroborated Rivas's identification, the absence of a charge on identification was not plain error.

III.

Next, defendant argues that the trial court erred by admitting the evidence regarding Rivas's out-of-court identification of him as one of the perpetrators of the robbery. Since defendant did not object to this evidence during the trial, we consider whether its admission constituted plain error. R. 2:10-2.

Defendant argues that the evidence concerning Rivas's outof-court identification should not have been admitted because the State did not introduce a written record of the procedures used in the identification process. We note that in State v. Delgado, 188 N.J. 48, 63 (2006), the Supreme Court required that, as a condition to the admission of testimony regarding an out-of-court identification, law enforcement officers must "make a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results."

In Delgado, the Court said that where it would not be feasible to do so, the officers should prepare a detailed summary of the identification. Ibid. The Court also said that defendants would be "entitled in discovery to any reports or tape recorded statements covering an identification procedure." Id. at 64.

hearing to contest the out-of-court identification. Thus, the record does not reflect whether, in fact, the officers maintained a written record of the identification procedure or prepared a summary of the identification process. Defendant notes that, when he testified, Domizi did not ask permission to refer to any writing but Domizi may have reviewed a written record before testifying.

In any event, the record fails to establish that the police officers failed to make the written record or summary, as required by Delgado. We therefore conclude that defendant has not shown that the admission of the out-of-court identification was erroneous, let alone an error "clearly capable of producing an unjust result[.]" R. 2:10-2.

IV.

Defendant additionally argues that the trial court erred by failing to provide the court with an instruction regarding the credibility of his confession. This argument was not raised below and, therefore, we consider whether the absence of the instruction was plain error. R. 2:10-2.

Where, as in this case, the court decides to admit a defendant's confession into evidence, the court must instruct the jury that it must consider whether, under the circumstances, defendant's confession was true and to disregard it if the jurors find that it was not true. State v. Hampton, 61 N.J. 250, 272 (1972). Moreover, N.J.R.E. 104(c) provides in pertinent part that, if a judge preliminarily determines that a statement by the defendant is admissible, the jury "shall be instructed to disregard the statement if it finds that it is not credible."

A trial court's failure to provide the Hampton charge does not always require reversal of a conviction. State v. Jordan, 147 N.J. 409, 425-26 (1997).

It is reversible error only when, in the context of the entire case, the omission is "clearly capable of producing an unjust result. . . ." R. 2:10-2. That problem would arise most frequently when the defendant's statement is critical to the State's case and when the defendant has challenged the statement's credibility. If, however, the defendant's statement is unnecessary to prove defendant's guilt because there is other evidence that clearly establishes guilt, or if the defendant has acknowledged the truth of his statement, the failure to give a Hampton charge would not be reversible error.

We are convinced that the court's failure to provide the jury with the Hampton charge was not reversible error. As we stated previously, McKay testified that defendant gave him a statement in which he admitted involvement in the robbery. In his testimony, defendant did not deny making that statement but asserted that he made it because he had been told that he could go home if he admitted robbing Rivas and would remain in jail if he did not do so. The court gave the jurors a detailed instruction on credibility, which provided them with sufficient guidance to determine whether to credit defendant's testimony or his confession. Moreover, the State presented ample evidence which otherwise was sufficient to establish that defendant committed the robbery. Thus, the absence of the Hampton charge was not plain error.

V.

Defendant additionally argues that his sentence is excessive. We do not agree.

Here, the trial court found aggravating factors two, N.J.S.A. 2C:44-1(a)(2) (gravity and seriousness of harm inflicted on the victim, including whether the victim was particularly vulnerable or incapable of resistance); nine, N.J.S.A. 2C:44-1(a)(9) (the need to deter defendant and others from violating the law); and twelve, N.J.S.A. 2C:44-1(a)(12) (defendant committed the offense against a person who he knew or should have known was sixty years of age or older or disabled). The court also found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (defendant has no prior history of delinquency or criminal activity). As stated previously, the court imposed an aggregate sentence of twelve years of incarceration, subject to NERA.

Defendant argues that the court double-counted aggravating factors two and twelve, placed too much weight on aggravating factor twelve, inappropriately applied aggravating factor nine, and afforded too little weight on mitigating factor seven. We are satisfied that these arguments are without merit.

Although defendant contends that the court inappropriately found aggravating factors two and twelve based on the fact that Rivas was disabled, there was a sufficient factual basis for aggravating factor two, wholly aside from Rivas's disability. The evidence showed that defendant pointed what appeared to be a loaded handgun at Rivas and threatened to kill him. Rivas begged for his life. He was upset, shaking and appeared to be on the verge of crying when the officers met him shortly after the robbery.

In addition, the court did not place too much weight on aggravating factor twelve, and properly exercised its discretion by refusing to give greater weight to mitigating factor seven. Defendant was twenty-seven years old at the time he was sentenced. He is a citizen of Nicaragua. It was unknown whether he had a criminal record in his native country. While he has no criminal convictions in this country, he has had three prior arrests.

We are therefore satisfied that defendant's sentence is not manifestly excessive or unduly punitive, is not an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

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